off the headlands; while the herring are all caught close inshore, within two miles of the shore.

There is nothing in that. It has been very honestly put by the wit ness. He says nine-tenths of the fish were caught within three miles of the shore.

It is a pure assumption on the part of Judge Foster that this line he refers to is a line drawn from the headland formed by East Point to the headland formed by North Cape.

Mr. FOSTER. What other headlands are there?

Mr. THOMSON. There are headlands formed by the indentations along the coast; and he refers to them. It will be found, as I have stated, that the witnesses referred to draw a clear distinction. They say that two-thirds or nine-tenths of the fish, as the case may be, are caught within three miles of the shore, but that if you draw a line three miles outside of the line from North Cape to East Point, they are all caught within such a line.

At page 39 Judge Foster introduces the inshore fishery question in this way:

We come then to the inshore fishing. What is that? In the first place there has been some attempt to show inshore halibut-fishing in the neighborhood of Cape Sable. It is very slight. It is contradicted by all our witnesses.

I take leave to join issue with him on that statement, and I call attention to page 429 of the British testimony, where he will see what the evidence is. I am obliged to call the attention of the Commission to this, because Mr. Foster treated it as a matter of course, as he did the case of Newfoundland. On page 439 William B. Smith, of Cape Sable Island, is asked, and answers as follows:

Q. With regard to halibut-fishing, is there any halibut-fishing carried on near Cape Sable Island?-A. Not by British people. The Americans fish there.

Q. Every year?-A. Every year regularly.

Q. What is the number of the fleet which come there to fish for halibut?-A. I have seen as high as nine sail at one time. I should suppose there was from 40 to 60 sail.

Q. Are the vessels cod-fishers at other times of the year?-A. I think they are. During the latter part of May and June they fish for halibut; then they fish for cod until October, and then for halibut.

Q In the spring and fall they fish for halibut, and in the summer for cod?—A. Yes. Q. Where do you live?-A. On Cape Sable Island.

Q. Can you see the fleet fishing for halibut ?-A. Yes.

Q. Are they right within sight from your door?-A. Yes; I can count the men on deck with an ordinary glass. I counted at one time nine sail at anchor fishing there.

At page 440 he is asked, just at the top of the page:

Q. How far from the shore are those halibut caught?-A. From one mile to two and a half or three miles perhaps off.

Q. They are caught inshore?-A. Near my place they fish within one mile and a half of the shore in 18 fathoms water.

Now here is the evidence of a credible witness, a very respectable man, whose testimony was not shaken in the least by cross-examination. Cunningham gave evidence, which will be found on page 407, to the same effect.

Mr. FOSTER. Have you got through with these gentlemen?

Mr. THOMSON. Yes, because I am going to show how you attempted to answer the whole of that testimony.

Mr. FOSTER. Shall you not want an observation upon the one you have referred to? It is this: If you follow the testimony through you will see that this witness, William B. Smith, testified that there was one spot where there was eighteen fathoms of water, and that was the spot where they caught the halibut. It turned out that upon the chart that

depth could not be found. In reply to the question whether he could name any person who had caught halibut there within the distance he had named in eighteen fathoms of water, he gave us the name of one vessel, the Sarah C. Pyle, Captain Swett (as it is in the report) of Gloucester; and being asked if he is a halibut-fisher, he says he thinks he is.

Mr. THOMSON. When Smith was under cross-examination the question was put to him whether there was eighteen fathoms of water in the place where the halibut was caught, and he said there was. A chart was placed in his hand, and whether he looked at it or not I do not know and I do not care. It was said to him by the counsel for the United States, "Look at that chart and you will find no such depth as eighteen fathoms." He said, "I have known it all my life-time; I know there are eighteen fathoms there." And while the American case was going on, and while one of the witnesses, who had been brought for the purpose of contradicting Smith, was on the stand, I myself took the British Admiralty chart, and on the identical spot which Mr. Smith had referred to I found eighteen or twenty fathoms of water. I think Mr. Foster must have forgotten this incident when he interrupted me.

I now turn to the evidence of Cunningham, page 407. The following passage occurs in his evidence:

Q. How much within three miles do these vessels which fish for halibut within that distance from the shore come?-A. I could not say; some, perhaps, fish within 1 miles of the shore. Where I am engaged in prosecuting the fisheries some of the American vessels fish within 1 miles, and others within miles of the shore, and so on.

Q. Are any cod and halibut taken outside of the three-mile limit?-A. O, yes; but this is not so much the case with halibut as with cod.

Q. Do many American fishermen fish there outside of three miles from shore ?-A. Undoubtedly; some 75 American sail do so around the shores of the county of Shelburne.

The word "outside" in the last question but one must be a misprint for inside. My question was, "Do many American fishermen fish there inside of three miles from the shore? And the answer was, undoubtedly; "some 75 American sail do so around the shores of the county of Shelburne."

Now I will turn the attention of the Commission to the evidence of Patillo.

Mr. FOSTER. Do you understand Cunningham as having left his tes timony that 75 sail of halibut-fishermen frequented the shores of the county of Shelburne ?

Mг. THOMSON. No; American fishermen.

Mr. FOSTER. He said he could not tell how many fished for halibut. Mr. THOMSON. I dare say so; if he had been an untruthful witness he would have fixed the number at once.

I now turn to the evidence of Thomas R. Patillo-not the Patillo of pugnacious reputation-and I want to refer specially to the remarks of my learned friend in reference to the evidence of Mr. Patillo, because it is a warning to the Commissioners to scrutinize the argument of my learned friend very closely. It is wonderfully ingenious, and unless you watch it very closely it will possibly mislead you. This is what Mr. Foster said, page 39 of his argument:

So much for the inshore halibut fishery. I will, however, before leaving it, refer to the statement of one British witness, Thomas R. Patillo, who testified that occasionally halibut may be caught inshore, as a boy may catch a codfish off the rocks.

Now he puts it as if Mr. Patillo had said that occasionally a halibut might be caught, as a boy might catch a codfish off the rocks, but that it was not pursued as a business. There is just enough truth in his

statement to make it a little dangerous.

is put:

This is the way the question

Q. Occasionally a halibut might be caught inshore, as a boy might catch a codfish off the rocks, but, pursued as a business, halibut are caught in the sea ?-A. Yes, in deep

water.

Now, surely this answer is not an assent to the proposition that halibut are merely caught occasionally, as "a boy would catch a cod off the rocks." It is an answer to the last branch of the question, namely, that the halibut are caught in the sea. The witness says: "Yes; they are caught in deep water." Now, surely it was not fair, on the strength of this answer, to quote Patillo as saying that occasionally halibut might be caught "as a boy would catch a cod off the rocks."

Mr. FOSTER. Now, wait a moment. I had previously asked, "To what banks do the fishermen whom you supply with bait resort?" and the witness had answered: "They chiefly go to the Western Banks and to Banquereau, and to our own offshore banks; the halibut is a deep-water fish, and it is taken in 90 fathoms of water and upwards." Then I said : "You don't know of any inshore halibut fishing done by the Americans which amounts to anything?" In answer to which the witness said: "Not inside of 90 fathoms of water." Then I asked: "Do you understand that the halibut-fishing is substantially everywhere a deep-sea fishery?" to which he answered, "Yes." Then put this other question: "Occasionally a halibut may be caught inshore, as a boy may catch a codfish off the rocks; but pursued as a business, halibut are caught in the sea?" And the witness answered, "Yes."

Mr. THOMSON. No; the witness honestly enough says that the halibut fishery is usually a deep-sea fishery, but the words describing it as merely an occasional thing to catch one inshore are Mr. Foster's, and the witness does not assent to those words, but to the statement that halibut are caught in the sea, to which he replies: "Yes, they are caught in deep water."

I only refer to this as an illustration of the dangerous power possessed by my learned friend in the twisting of evidence. "So much," he says in his speech, "for the inshore halibut fishery, and that brings me to the inshore cod fishery, as to which I am reminded of a chapter in an old history of Ireland that was entitled 'On Snakes in Ireland,' and the whole chapter was, 'There are no snakes in Ireland.""

Now, that is a very amusing way of treating the cod fishery, but unfortunately it is not justified by the facts. If there is no more truth in the statement that there are no snakes in Ireland than there is in the statement that there is no inshore cod fishery, I am very much afraid that island is overrun with vipers. Now, I will show you distinctly that we have the most conclusive testimony on the subject of the inshore cod fisheries, and it is a very singular thing that my learned friend should have dismissed the subject so summarily as he did. I refer to the evidence of the British witness named Nicholson, page 207. Let us see what he says. By the same token, this is the very man that speaks of the halibut also. In the cross-examination by Mr. Dana, on page 207, the fol lowing passage occurs:

Q. Well, cod are often caught inshore, but would not you say cod was a deep-sea fish ery?-A. Yes.

Q. And halibut is the same?-A. Yes.

Q. I believe one witness, a Mr. Vibert, of Perce, in the county of Gaspé, said that the halibut were altogether caught within the three-mile limit, without any exception. He says, "that is I believe what I have understood from our fishermen; they have told me that halibut could not be caught in deep water." (Reads from page 110 of the evidence.) Should not you say that was a mistaken statement?-A. Yes. The Gloucester folks go every winter.

In fact, they go the whole year round to catch them. In the summer they get halibut in shallow water, but in the winter they have to fish in 100 fathoms of water.

Q. So they are a deep-water fish as a fish, but you can catch them inshore ?-A. They may be caught inshore."

Q. Do the Americans themselves pursue the halibut-fishing except as a deep-sea fishery? -A O, yes. They take them anywhere where they can get them.

Q. Do you think that on this coast the Americans fish for halibut?-A. Yes.

Q. They take them as they find them, but do they undertake as a business the fishing for halibut inshore?-A. Certainly, the treaty allows it. They will take them in our harbors if they can.

Now, if you look at page 413, the evidence of Mr. Ruggles, you will find some evidence upon this point:

Q. What kind of fish are caught here?-A. Codfish, haddock, hake, pollock, halibut, herring, and some mackerel when they strike our shores.

Q. Is it an inshore fishery?-A. With the large proportion of the inhabitants it is an inshore fishery in small boats.

Q. Do you know where Cape Split is?-A. Yes.

Q. Now does this fishery extend up the north coast of the island and off Digby Neck as far as Cape Split ?-A. Yes. It is quite an extensive fishery up to the Isle of Haute, and that is well up to Cape Split.

Q. From Cape Split it extends all the way to your island. Around the shores of the bay, are there fisheries there?-A. Yes.

Q. Around both sides of the bay ?-A. That is Digby Neck side and Clare.

Q. And down the coast as far as Yarmouth ?-A. Perhaps on the south side of St. Mary's Bay on the French Shore or the Township of Clare it is not so extensive.

Q. It is not so extensively carried on, but is the fish as good?-A. I could hardly say it was as good on the south side, but still there are a number that prosecute the fisheries there. It is increasing annually. The inhabitants are turning their attention more to the fishery business.

Now you will recollect that this evidence is wholly uncontradicted, and the same is true of the testimony of Mr. Payson, on page 399. He is fishery overseer for Long Island and Brier Island, residing at Westport, Digby County, Nova Scotia. His evidence is as follows:

Q. You are inspector of fisheries there?-A. Yes, up to Tiverton and Petit Passage. Q. What do you consider to be the value of the fisheries there?-A. Last year the fishermen exported about $200,000 worth of fish.

Q. What parts of the coast does that include ?-A. The two islands.

Q. From the two islands, which constitute about 7 miles of the 30 miles of the Neck on one side of the bay, the fish exported amounted to $200,000?—A. Yes.

Q. The other portion of the fishery is as good as yours?-A. Well, perhaps not quite. They are not as fully carried out.

Q. Fish are plentiful?-A. There is fishing all along the coast.

Q. The people on those islands live almost exclusively by fishing?-A. Pretty much altogether.

Q. For a number of years your district has been frequented by small American schooners?-A. Yes.

Q. What kinds of fish do they catch?-A. They catch the same kinds as we do-cod, halibut, pollock, and herring.

Q. They catch their own bait?-A. The small vessels catch their own bait.

Q. Besides these small schooners, your district is frequented by other American fishingvessels -A. A great many other vessels come in mainly for bait, sometimes for ice, and go out again.

Q. How often do they come in for bait?-A. I have known some vessels to come three times in a season.

Q. Where do the small American vessels take their fish?-A. To where they belong, I suppose. They come from along the coast down to Mount Desert.

Q. It is a business that is increasing ?-A. Yes.

Q. Do the American vessels fish there during the season?-A. The small fishing-vessels fish there during the season, and the other vessels come in for bait. There are fisheries at Whale Cove, and White Cove from one to three miles above Petit Passage, and quite an extensive fishery about five miles above. The people there complained of the small American Vessels coming there and interfering with the fishery. I told them I could not do anything, because the Americans are allowed the same privileges as we are. I also heard complaints of the Americans transgressing the law by Sabbath fishing and throwing gurry overboard. In two cases I issued a warrant, but they got out of the way and it was not served upon them.

Q. Why do the American schooners come over to your district, and not fish on their own coast-A. They said the fishery on their own coast has failed, and they gave me as a reason that they thought it was a good deal due to the trawling practices.

Q. During how many years have they been coming there?-A. Three or four years. Q. They gave you that as the reason why they come to your coast ?—A. I talk to a great many masters of American vessels. My son keeps an ice house, and they come there fot ice, and I have talked with them about the fisheries, and they told me the trawling had, in a measure, broken up their fishing.

Q. How far from the shore do they catch cod, pollock, and haddock?-A. From half a mile to a mile. The large vessels fish mostly outside the three miles, but the small vessels fish on the same ground as our own fishermen. The small vessels fish within half a mile or a mile of the shore. They anchor the vessels in the harbor, and go out in boats to fish ; they fish close inshore.

Now, they did not contradict that evidence at all. I do not know what the extent of coast is from Cape Split to Digby Neck.

Mr. FOSTER. What counties does it include?

Mr. THOMSON. Kings, Annapolis, and Digby.

There was an attempt to contradict this evidence by the evidence of Sylvanus Smith, page 338 of the American testimony. As the coun sel for the United States have not the privilege of replying, it is only fair that I should cite the pages of the American testimony that were presented in attempted contradiction of the evidence of our witness. The evidence of Sylvanus Smith is as follows:

Q. How near shore to any place have you known of the halibut being fished?—A. One hundred and fifty miles may be the nearest point.

Q. These are Banks; but haven't you known it to be done, or attempted, near shore?— A. I have.

Q. Where have you known them?-A. On the Labrador coast they have caught them large near the shore. I have known them catch them in 30 miles or 25 miles around Cape Sable. I fished there quite a number of years, around Seal Island and Brown's Bank. Q. How near land there did you ever fish?-A. I have fished in sight of land. I could see it.

Q. Did you ever fish within three miles -A. No; I don't think any one could fish in there, because it is not a fishing ground.

Q. You don't know of any one?-A. No.

That is all he could give in the way of contradictions, if I recollect right. On page 340 this question is put to him:

Q. You cannot speak of the places where halibut have been caught since that time from practical knowledge?-A. No.

Q. Previous to 1864 you were engaged. How many seasons were you engaged catching halibut-A. I think some six or eight.

Q. When you were then engaged did you go into the Gulf of St Lawrence at all for halibut?-A. Never.

Q. Are you aware that there is a halibut fishery around Anticosti?-A. I never was aware of any.

Q. Well, the fact that two vessels were seized there while inside trying to catch, would be some evidence that they believed the halibut were there?-A. Well, they look for them everywhere.

Q. Don't you think they must have had reasonable grounds?—A. I don't think it. They are in the habit of looking everywhere where they may be.

Q. Do you stand by the full meaning of your answer that you don't think they had reasonable grounds for believing the fish to be there ?-A. Well, a man might have reasonable grounds for believing they were in the water anywhere.

Mr. FOSTER. Have you the evidence where he says that one of his vessels strayed into the Gulf of St. Lawrence after halibut? Look also at Swim's affidavit, page 238.

GLOUCESTER, October 10, 1877.

I, Benjamin Swim, of Gloucester, Mass., on oath depose and say, that I was born at Barrington, Nova Scotia; am 27 years of age, and am now master of schooner Sarah C. Pyle, of Gloucester, and have been since April of this year; have been engaged in codfishing during that time; have landed 150,000 pounds of codfish and about 3,000 pounds of halibut: and caught them all, both codfish and halibut, on Western Banks. The nearest to the shore that I have caught fish of any kind this year is at least forty miles.

BENJAMIN SWIM, Master of Schooner Sarah C. Pyle.